Madras High Court
A.Sankar vs Arulmigu Angalaparameswari ... on 15 July, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 15.7.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P. (NPD) No.3156 of 2017
and
C.M.P.No.14812 of 2017
and
C.M.P.No.16639 of 2019
A.Sankar Petitioner
vs.
Arulmigu Angalaparameswari Thirukkoil
rep. by its Executive Officer,
No.189, Adam Sahib Street,
Royapuram, Chennai 600 013. Respondent
Civil Revision Petition filed under Section 115 CPC against the
Fair and Decreetal order dated 10.8.2017 passed in E.A.No.1029 of
2014 in E.P.No.3907 of 2007 in O.S.No.5203 of 1997 on the file of the
IX Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr.M.Balasubramaniam
For Respondents : Mr.D.R.Sivakumar
ORDER
The revision has been filed against the order dated 10.8.2017
passed by the IX Assistant Judge, City Civil Court, Chennai in
E.A.No.1029 of 2014 in E.P.No.3907 of 2007 in O.S.No.5203 of 1997.
http://www.judis.nic.in
2. Brief facts of the case is as under:-
i) The revision petitioner is the son of one Angamuthu, who was
inducted as a tenant in respect of the land of the respondent to an
extent of 1200 sqft during the year 1970 and in the year 1972, the
petitioner's father constructed four shops and let out the same to
third party tenants. Thereafter the petitioner's father died and the
petitioner was occupying the said premises.
ii) Finding that the petitioner is a trespasser, the respondent
temple filed a suit in O.S.No.5203 of 1997 before the City Civil Court
Chennai for evicting the petitioner and for the rental balance of
Rs.3492 for the period from 1.2.1992 to 31.1.1997 and to pay an
amount of Rs.97/- towards damages from the date of cancellation of
the agreement till the date of handing over possession.
iii) The suit was decreed on 30.6.2004 and the petitioner was
directed to quit and deliver vacant possession to the temple before
30.8.2004 and the petitioner was directed to pay Rs.1800/- towards
rental balance and Rs.50/- towards damages for the period from
1.2.1997 till handing over vacant possession and also a sum of
Rs.1028/- as cost.
iv) Against the above judgment and decree, the petitioner
preferred first appeal in A.S.No.406 of 2004 which was dismissed on
http://www.judis.nic.in
27.10.2005 and the Second Appeal preferred by the petitioner in
S.A.No.507 of 2008 was also dismissed on 18.3.2009 confirming the
order passed by the Trial Court in O.S.No.5203 of 1997.
v) The respondent/decree holder filed E.P. 3907 of 2007 to
evict the petitioner. The petitioner filed E.A.1029 of 2014 under
Section 47 to pass an order that the decree obtained, by reason of
subsequent development, is not enforceable and inexecutable and
the same was also watered-down by the post decreetal arrangement.
The E.A. filed by the petitioner was dismissed against which, the
present civil revision petition has been filed.
3. The learned counsel for the petitioner would submit that
originally, in the year 1970, his father occupied the land belonging to
the respondent and put up four shops in the said land and he was
paying the rent regularly to the respondent and thereby his tenancy
was recognised by the respondent and after his demise, the petitioner
came to occupy the same and he had paid a sum of Rs.4,14,000/- in
total to the respondent out of which a sum of Rs.3,50,000/- was
received in lumpsum under the guise of settlement towards donation
and advance. He would further submit that though the Trial Court
had directed the petitioner only to pay Rs.1800/- towards rental
arrears and to pay Rs.50/- towards damages, the respondent had
http://www.judis.nic.in
collected huge amounts as evidenced by the receipts marked by the
petitioner and in view of the subsequent events, the decree has
become varied and modified and therefore, it has become
unenforceable in law and thereby the petitioner had filed petition
under Section 47 of CPC, however, the Executing court, without
taking into consideration the subsequent events, had dismissed the
E.A. Therefore, he would seek to allow the revision and set aside the
order passed by the Executing Court.
4. Mr.D.R.Sivakumar, learned counsel appearing for the
respondent would submit that at no point of time, the respondent
temple has recognised the tenancy of the petitioner and the
respondent had filed O.S.No.5203 of 1997 and obtained decree in the
year 2004 itself and the first appeal and the second appeal filed by
the petitioner were also dismissed and the petitioner had not
preferred any Second Appeal as against those orders and thereby the
order passed by the Trial court has been confirmed. He would further
submit that the Executing Court, rightly finding that there is no
variation or modification in the decree, dismissed the petition filed
under Section 47 CPC. He would also submit that the amounts alleged
to have been paid by the petitioner are towards rental arrears and
the respondent/temple authorities have never recognized the
http://www.judis.nic.in
tenancy. He would also submit that as per Explanation (a) to
Section 78 of the HR&CE Act, the petitioner is squatting on the
property without the approval of the competent authority as an
encroacher and is unable to be evicted. He would further submit that
the petitioner alleged about payment of huge amount towards
compromise and settlement, but, such amount was accepted only
without prejudice to the pending litigations and the person to whom
the amount was said to have been paid has no authority to settle the
matter with the petitioner in view of Section 43 of the HR & CE Act
and thereby, as on date, in pursuance of the decree passed, the
petitioner is an encroacher on the property and the temple has taken
every steps to evict the petitioner and finding that the petitioner is an
encroacher the Executing Court has rightly dismissed the petition.
5. Heard the learned counsel for the parties and perused the
materials available on record.
6. It is the case of the petitioner that subsequent to the decree,
the respondents have received an amount of Rs.4,14,000/- under the
guise of donation and advance and having received the amounts, they
have gone back from settlement.
7. It is not in dispute that the tenancy cannot be inherited
under the HR&CE Act. As per Explanation (a) to Section 78 of the
http://www.judis.nic.in
HR&CE Act, any person, who is in occupation of property without the
approval of the competent authority (sanctioning lease or mortgage
or licence) is determined as an encroacher. The competent authority
vested with the power of sanctioning the licence refers to the
Commissioner of HR&CE and he alone has the authority to sanction
for compromise any lis to which a religious institution is a party as
evidenced by Section 43 of the HR&CE Act.
8. Of course, it is brought to the notice of this court that the
petitioner had already approached the authorities for recognizing him
as tenant and that approach had failed.
9. On going through the entire materials, this court is able to
understand the delaying tactics played by the petitioner in dragging
the proceedings and thereby preventing the respondent from
executing the decree for nearly about two decades. The Executing
Court has rightly restricted itself without going into the questions
arising between the parties or their representatives relating to the
execution, discharge or satisfaction of the decree and dismissed the
petition filed under Section 47 of CPC. I do not find any error or
infirmity in the order passed by the Executing Court. The civil
revision petition is dismissed. No costs. The connected Miscellaneous
Petitions are closed.
http://www.judis.nic.in
15.7.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
To
1. IX Assistant Judge,
City Civil Court, Chennai.
2. Arulmigu Angalaparameswari Thirukkoil
rep. by its Executive Officer,
No.189, Adam Sahib Street,
Royapuram, Chennai 600 013.
http://www.judis.nic.in
A.D.JAGADISH CHANDIRA, J.
Ssk.
C.R.P. (NPD) No.3156 of 2017
and
C.M.P.No.14812 of 2017
and
C.M.P.No.16639 of 2019
15.7.2021.
http://www.judis.nic.in
